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ELCDismissedConstitutional Petition arising from Amended Petition dated 29th October 2012 (Kajiado)· [2018] KEELC 2481 (KLR)

Gideon Sitelu Konchella & another v Attorney General & 5 others [2018] KEELC 2481 (KLR)

Environment and Land Court of Kenya
26 June 2018
3,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a landowner's constitutional challenge because the same land dispute had already been decided in earlier lawsuits.

What this practically means

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Executive summary

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The Petitioners, registered proprietors of land parcels KAJIADO/KAPUTIEI-NORTH/3282 and 3283, petitioned the Environment and Land Court at Kajiado challenging the charging of their land to Daima Bank Limited (in liquidation) to secure a Kshs. 5 million term loan, the bank's exercise of its statutory power of sale, and the subsequent sale to purchasers. They sought declarations that the sale was unconstitutional and void for want of Land Control Board consent, that their Article 40 property rights were violated, and an order compelling the Director of Public Prosecutions to order criminal investigations. The Respondents opposed: the bank relied on the letter of offer, the charge, default, judgment in HCCC No. 627 of 1998 (including a consent judgment and Hewett J's judgment of 22nd May 2001), dismissal of the 1st Petitioner's HCCC No. 102 of 2002 for want of prosecution, a public auction realising Kshs. 12,250,000, and subsequent settlement of the decretal balance; the purchasers claimed to be buyers for value without notice; the DPP objected to being directed to investigate. The court framed three issues: violation of the right to property, whether the Respondents' conduct contravened the Constitution, and res judicata. Applying section 7 of the Civil Procedure Act and the Anarita Karimi Njeri principle, the court found the Petition res judicata, the claims private-law matters with remedies under section 90 of the Land Act, and the alleged violations imprecisely pleaded. The Amended Petition was dismissed with costs to the Respondents on 26th June 2018.

Key legal issues

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01

Whether the Petition is res judicata

Holding

The Petition is res judicata as its issues were heard and determined in Nairobi HCCC No. 627 of 1998 and HCCC No. 102 of 2002

Reasoning

Two suits over the same suit lands between the same parties or their privies were heard and determined by courts of competent jurisdiction. The 1st Petitioner's application for leave to appeal was dismissed, HCCC No. 102 of 2002 was dismissed for want of prosecution, and the 1st Petitioner even paid the outstanding decretal balance after the auction proceeds were factored in. Raising the same issues by petition is an affront to res judicata.

02

Whether the Petitioners' right to own property under Article 40 was violated

Holding

No violation; the claims are private-law matters governed by the Land Control Act, Registered Land Act (Repealed) and Banking Act, and remedies lay in a damages claim under section 90 of the Land Act, not a constitutional petition

Reasoning

The loan procurement and statutory power of sale were litigated and determined in the two prior High Court suits. The mortgagee adhered to due process, the purchasers were buyers for value without notice who had subdivided the land with new titles, and the Petitioners had remedies in private law. The Petition is an attempt to recloth an old claim to vex the respondents.

p. 4
03

Whether the Respondents' conduct violated the Constitution

Holding

No violation; the Petitioners failed to identify with precision which rights each Respondent infringed, and the 3rd Respondent followed due process before exercising its statutory power of sale

Reasoning

Applying Anarita Karimi Njeri, the Petitioners did not plead the alleged infringements with the required precision. The loan defaulted, the chargee exercised its statutory power of sale after judgment, and the dispute was determined by a competent court. The 4th Respondents' property rights as purchasers for value cannot be interfered with.

Legal principles established

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  • A court may not try a suit or issue that was directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court (res judicata)
  • A petitioner alleging constitutional violation must state and identify the rights infringed with precision and how they were infringed (Anarita Karimi Njeri rule)
  • A consent judgment can only be set aside in the same cause and upon proof of fraud, coercion or misrepresentation

Court orders

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  1. 1.The Amended Petition dated 29th October 2012 and filed on 30th October 2012 is dismissed
  2. 2.Costs of the Petition to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23(1), 40, 157(4)(10)(11)
  • Civil Procedure ActSection 7
  • Land Control ActCap 302 Laws of Kenya
  • Registered Land Act (Repealed)
  • Banking ActSection 44
  • Land ActSection 90

Cases cited (6)

  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Uhuru Muigai Kenyatta Vs Nairobi Star
    (2013) eKLR
  • Roshanara Ebrahim Vs Ashleys Kenya Limited
    (2016) eKLR
  • Cockmere Brick Co. Ltd and Another vs Mutual Finance Ltd
    (1971) 2 EA ALL E 12 633
  • Anarita Karimi Njeri Vs R
    (1976-1980) KLR 1272
Jurisdiction invoked
Constitutional petition under Articles 22(1), 23(1), 40 and 157 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gideon Sitelu Konchella & another v Attorney General & 5 others [2018] KEELC 2481 (KLR)", Case Analysis (2018). Constitutional Petition arising from Amended Petition dated 29th October 2012 (Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2481/eng@2018-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.